Citation NR: 9617426
Decision Date: 06/19/96 Archive Date: 06/28/96
DOCKET NO. 93-14 670 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased evaluation for residuals of
gunshot wounds, left lateral neck, with injury to Muscle
Group II, currently evaluated as 20 percent disabling.
Entitlement to an increased rating for post-traumatic stress
disorder (PTSD), evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: To be clarified
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
William J. Jefferson, Counsel
INTRODUCTION
The veteran had active service from August 1942 to January
1946.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of Veterans
Affairs (VA) Columbia, South Carolina, Regional Office (RO).
In May 1995, the case was remanded to the RO for additional
development. The case has now been returned to the Board.
REMAND
When the Board remanded this case in May 1995 requested
development included scheduling the veteran for a VA physical
examination in order to for evaluation of all service
connected residuals of gunshot wounds. It was specifically
requested that the examiner opine whether the veteranís
service connected gunshot wound residuals caused, contributed
to, or otherwise impacted upon any orthopedic or neurological
problems, including degenerative changes in the cervical
spine. See Allen v. Brown, 7 Vet.App. 439 (1995).
A review of the record shows that a VA medical examination
was performed in October 1995. However, the examiner did not
render an opinion considering the questions posed in the
Board remand. As a result, the Board concludes that further
clinical information is necessary in this case.
In a March 1993 rating action, service connection was awarded
for PTSD. In a December 1993 statement, the veteranís
representative of record indicated disagreement with the
assignment of a 10 percent rating. When a claimant is
awarded service connection for a disability and subsequently
appeals the ROís initial assignment of a rating for that
disability, the claim continues to be well-grounded as long
as the rating schedule provides for a higher rating and the
claim remains open. Shipwash v. Brown, 8 Vet.App. 218
(1995).
In addition, the Board notes that VA Form 21-22, Appointment
of Veteranís Service Organization as Claimantís
Representative, lists Greenville County Veteranís Affairs as
the veteranís representative. However, in the past The
American Legion has represented the veteran. A VA Form 1-646
received in June 1993 is signed by a representative of the
South Carolina Department of Veterans Affairs and The
American Legion. Clarification of representation should be
obtained from the veteran.
Furthermore, administrative records in the claims folder
indicate that the RO attempted on several occasions in the
past to determine if a certain VA medical center harbored
clinical records of the veteran. A response from the
facility is not of record. The RO should contact the
facility so that his records may be procured if existent.
The VA has a statutory duty to assist claimants with their
claims under the provisions of 38 U.S.C.A. ß 5107(a) (West
1991).
In consideration of the foregoing, this case is REMANDED to
the RO for the following:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for PTSD since
1993. After securing the necessary
release, the RO should obtain these
records.
2. The RO should contact the veteran and
clarification of service representation
should be obtained from him.
3. The RO should contact the VA Medical
Center, Asheville, North Carolina, to
determine if any clinical records of the
veteran exist at the facility. If so,
copies of the veteranís clinical records
from 1990 to the present should be
procured and associated with the claims
folder.
4. The RO should obtain copies of the
veteranís clinical records from July 1995
to the present, from the VA Medical
Center, Columbia, South Carolina, and
associate those records with the claims
folder.
5. The veteran should be afforded VA
orthopedic and neurologic examinations to
determine the extent all service
connected residuals of gunshot wounds.
All indicated tests and studies,
including X-ray studies, are to be
performed. A specific determination
should be made as to the relationship, if
any, between all of the veteranís left
upper extremity difficulties and cervical
symptoms and his service connected
disabilities. The orthopedist and
neurologist should provide reasoned
opinions as to whether the veteranís
service-connected gunshot wound residuals
caused, contributed to, or otherwise
impacted upon any orthopedic or
neurological problems, and if so, the
resulting manifestations and impact. The
claims folder and a copy of this remand
must be made available to the examiner,
prior to the examination, for use in the
study of the case.
When the requested development has been accomplished, if the
claim remains in a denied status, the appellant and to be
clarified representative, should be furnished with a
supplemental statement of the case and afforded a reasonable
opportunity to respond thereto. Thereafter, if necessary, the
case and the requested evidentiary data should be returned to
the Board of Veterans' Appeals for further appellate
disposition.
REN…E M. PELLETIER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1995).
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